Oxford University Comparative Law Forum
The German Civil Code and the Development of Private
Law in Germany
(2006) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite this article
Table of contents
I. The Codification Movement in Europe
The codification of private law from the late eighteenth century
onwards is regarded, very widely, as a turning point in the development
of private law in Europe.1
Obviously, some of the more naive expectations entertained by
intellectuals of the Age of Enlightenment have not been fulfilled: the
codifications have neither made the learned lawyer redundant, nor have
they led to a lasting consolidation (or ossification) of private law.
They have, however, significantly contributed to the national
fragmentation of the European legal tradition: for codification
constitutes a piece of legislation which is applicable only within the
confines of the territory for which the body responsible for
legislation is competent to legislate. There had been signs of such
fragmentation at the time of the usus modernus pandectarum in
the seventeenth and eighteenth centuries when the 'institutional'
writers had no longer discussed Roman law as such but Roman-Dutch or
Roman-Scots law, ius romano-hispanicum or ius
But it had always been clear that these were merely regional or
national variations of a common theme: different manifestations of one
and the same legal tradition. With the enactment of the codifications
this began to change. The awareness of a fundamental intellectual unity
got lost and legal scholarship degenerated, in the much-quoted words of
Rudolf von Jhering, to a national discipline the intellectual
boundaries of which coincided with the political ones.3
At the same time, the codifications brought to an end the 'second
life' of Roman law, i.e. the story of its practical application in
Europe. Since the days of the 'reception' Roman law had provided the
basis for the administration of justice in western and central Europe
and had become a ius commune, or common law.4 In the process, it had
been subject to considerable change; in particular, it had absorbed
many elements of canon law, indigenous customary law, mercantile
custom, and natural law theory. The usus antiquus of Roman law
had thus been transformed into a usus modernus pandectarum5. Yet, a
string of authors from François Hotman to Hermann Conring and
Christian Thomasius had started to shake the authority of Roman law: of
a law that had given rise to intricate doctrinal disputes, that was
wedded to outdated and impracticable subtleties, and that had been
enacted by the despotic rulers of past ages. Also, since Roman law was
applicable only in subsidio, countless more specific
territorial or local laws could govern a particular dispute. The great
number and complexity of legal sources contributed to a widespread
feeling of legal uncertainty and inefficiency as far as the
administration of justice was concerned. The codifications were
supposed to tidy up this messy situation: they were to provide a
systematic regulation of the entire private law, ousting all rival
sources including, in particular, the ius commune. Thus,
Article 1 of the Dutch Abrogation Act (Afschaffingswet) provided, in a
phrase suffused with fear, relief, and elation: 'The legal validity of
Roman law is and remains abrogated.'6
II. The German Civil Code as a Late Fruit of the
The German Civil Code is a comparatively late fruit of the
codification movement. The three great natural law codifications in
Prussia, France, and Austria had been prepared in the late eighteenth
and early nineteenth centuries. They were intended to satisfy the
desire for territorial legal unity. The Code civil, in
particular, had thus become a potent symbol for the one undivided
nation that had emerged from the upheavals following 1789. In the
course of the nineteenth century, however, most of the other states of
central, southern, and western Europe had codified their private law.
Predominantly, the Code civil had been the source of
inspiration. It continued to apply in Belgium and became the basis of
the Dutch Burgerlijk Wetboek of 1838.7 It provided the point of
departure for the Italian Codice civile of 1865 (which could
thus be enacted a mere four years after the kingdom of Italy had come
into being), for the Portuguese Código civil of 1867,
the Spanish Código civil of 1888 - 89 and the Romanian
Civil Code of 1865.8
The Serbian Civil Code of 1844, on the other hand, had been influenced
mainly by the Austrian Code.
Increasingly, therefore, the legal position prevailing in
nineteenth-century Germany was bound to look odd and anachronistic. The
Prussian territories (including Westphalia, Bayreuth, and Ansbach) were
governed by the Preußisches Allgemeines Landrecht. In the
Rhine-Province, Alsace, and Lorraine the Code civil applied.9 The Grand
Duchy of Baden had adopted the Badisches Landrecht which was
based on a translation of the Code civil.10 The Kingdom of Saxony
enacted its own Civil Code in 1865. Some places in Bavaria lived
according to Austrian law, while in parts of Schleswig-Holstein Danish
law prevailed. Most of the remaining German territories (comprising, in
1890, close to 30 per cent of the population of the Deutsches Reich)
still administered justice according to the ius commune. But the
ius commune only applied in subsidio. Countless more
specific territorial or local laws could therefore govern a particular
dispute: from thirteenth-century texts like Eike von Repgow's famous Sachsenspiegel
to Baron von Kreittmayr's Codex Maximilianeus Bavaricus Civilis
of 1756, from the Neumünsterische Kirchspielgebräuche
to the Nassau-Katzenelnbogensche Landesordnung.11 Thus, for example,
there were all in all more than one hundred different regulations
concerning succession upon death. None the less, in the German
territories, a fundamental intellectual unity had continued to persist
throughout the nineteenth century. That unity was forcefully promoted
by Savigny's Historical School of Law and the pandectist legal
scholarship that emerged from it.12 Thus, the contemporary version of
Roman law did not apply only in the areas still governed by the ius
commune; even in the countries of codified law it provided the
underlying legal theory.13
It provided the self-evident point of reference for understanding and
assessing the codifications and territorial statutes. Therefore, it
remained perfectly possible for a law professor to be called from
Königsberg to Strasbourg, from Gießen to Vienna, or from
Heidelberg to Leipzig. Nor were law students, as far as choice and
change of universities were concerned, confined to the institu-tions of
the state in which they later wanted to practise. Neither the Prussian
Code, nor the Code civil or the Saxonian Civil Code, became
the focal point for the legal training offered in the universities of
the respective states.14
Just as the codified laws had at first been neglected, and subsequently
been pandectified, by contemporary legal scholarship, they constituted
hardly more than an appendix to the courses on Roman private law in the
curricula of nineteenth-century law faculties.15
III. The Programme of 'Historical Legal Science'
Our perception of nineteenth-century pandectist 'legal science' has
been coloured, for a long time, by the exaggerations of those who
attempted to break away from it and from the 'conceptual jurisprudence'
established on that basis. Thus, a scholar like Georg Friedrich Puchta
is only slowly beginning to emerge from the shadow cast by the
pre-eminence of Savigny.16
Jhering's work cannot be apportioned as easily, as once thought, into
two different periods, separated by a 'conversion' from conceptual to
functional jurisprudence. And even Bernhard Windscheid, the embodiment
of pandectist scholarship in the second half of the nineteenth century
('Legal scholarship means pandectism, and pandectism means Windscheid')
not only regarded himself as the servant, but also as the master of the
True law, for Windscheid, was 'strict but, at the same time, lenient;
fixed and yet free; firm but also flexible' (that corresponded to the
ideal of classical Roman law), and the true Jurist, in his view, was
able, like the Roman jurists, 'to serve his concepts and freely to rise
The programme of 'historical legal science', as it had been developed
by Savigny at the beginning of the century, had also been characterized
by a certain tension. For while the emphasis of an organic connection
between contemporary law 'and the entire past'19 led to a discovery of
the modern discipline of legal history (previously there had only been
Savigny ultimately aimed at legal (rather than historical) scholarship,
i.e. the establishment of a legal doctrine which, though developed
'historically', was in conformity with contemporary requirements.21 Thus,
in the preface to his System des heutigen Römischen Rechts
(System of Contemporary Roman Law) Savigny emphasized the need
'firstly, to trace and establish, within the entire body of our law,
what is... of Roman origin, in order not to be unconsciously dominated
by it; but then our approach aims at eliminating, among these Roman
elements of our intellectual formation, whatever has in fact withered
away and merely continues to lead a troublesome shadow life as a result
of our misunderstanding'.22
The main task of a scholar in private law, he writes at another place,
'is the intellectual penetration, adaptation and rejuvenation' of the
legal material as it has come down to us.23 Savigny's vision of an 'organically
progressive' legal scholarship,24 based on a uniform body of sources,
guided by the same methodological convictions, and common to the whole
nation - for Windscheid this was 'a revelation'25 - led to a heyday of
legal scholarship in Germany. It constituted the intellectual
foundation for the emergence of a national community of scholars, of
German legal unification on a scholarly level. At the same time,
pandectism secured the leading place for Germany in the world of
nineteenth-century legal scholarship; it was much admired by lawyers
all over Europe and exercised significant influence on the legal
development in countries such as France, Italy, and Austria.26
An obvious paradox inherent in Savigny's programme that has
repeatedly been noted consisted in the emphasis on Roman law as the
basis for a contemporary theory of private law. It ill matched the idea
of law as being the product of the spirit of the people (Volksgeist).
The phenomenon of the 'reception' could only be explained in a very
tortuous way on that basis.27 A second problem arose from
Savigny's partiality for the pure and undiluted Roman law,
corresponding to the educational principles of contemporary humanism
and the aesthetic ideas of classicism.28 It entailed a somewhat disdainful
attitude towards the immediately preceding period of the usus
modernus pandectarum and a negative, and essentially unjust,
evaluation of the work of the medieval Commentators whose mos
italicus had paved the way for the usus modernus. This
attitude was not easily reconcilable with a programme that was
fundamentally based upon the notion of 'organic growth' and insisted on
'the even and dispassionate recognition of the value and individuality
of every age'.29
IV. 'Historical Legal Science' and Codification
Moreover, there was, within the Historical School, an ambivalence
towards the question of codification that was never quite resolved. The
of the Historical School was Savigny's reply to A.F.J. Thibaut's call
to end the intolerable and inconvenient diversity of private laws
prevailing in Germany by adopting a General German Civil Code, modelled
on the French Code civil.31 In his famous essay entitled Vom
Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (Of
the Vocation of our Time for Legislation and Legal Science) Savigny not
only rejected the idea of a codification to be drafted and enacted hic
et nunc, but criticized the very notion of a codification as
inorganic, unscientific, arbitrary and hostile to tradition. At best,
it was unnecessary; at worst it would distort and stifle 'organic'
None the less it was widely accepted, from about the middle of the
nineteenth century that a codification of private law in Germany was
about to come and was to end the direct application of Roman law.
Theodor Mommsen in 1848 voiced the German nation's desire for the
creation of a uniform and national law,33 and Rudolf von Jhering predicted in
1852 that his own generation of lawyers would see the demise of Roman
law in its present form.34
The editorial of the first volume of the Zeitschrift für
Rechtsgeschichte (Journal of Legal History 1861), while professing
to continue the plan and the aims of Savigny's Zeitschrift für
geschichtliche Rechtswissenschaft (Journal of Historical Legal
Science) gave expression to the prevailing conviction that the
historical development of the law could now sufficiently clearly be
assessed 'for the results of the historical inquiry to be employed in
the legislative process'. And even one of Savigny's most faithful
disciples, who had sat at his feet in the University of Berlin and who
had never ceased to see in him his own scholarly ideal, Bernhard
was among the most influential proponents of a German codification.
Among the German lawyers, he wrote in 1878, 'there are probably
relatively few who have not, with all the strength of soul available to
them, yearned for the great work of a German code of private law',36 Thus,
it is small wonder that the codification's entry into force on the
first day of the new century was greeted with strong feelings of
national pride. 'The new century brings to fruition the greatest feat
achieved in German legal life', as it was put in one of the two leading
law Journals for practitioners,37 while the other one, the Deutsche
Juristenzeitung (German Lawyers' Journal) opened its January issue
for the year 1900 with an ornamental page carrying the heading 'One
People. One Empire. One Law'. For the first time, the notion of legal
unity had become reality on German soil and for the first time,
therefore, the energies of scholars and practitioners alike could focus
on the interpretation of one and the same authoritative text.
V. Legal Unity by Way of Legislation
The way towards legal unity by means of a code of private law had
been long and arduous. In the first half of the nineteenth century, the
various states joined in the Deutscher Bund (German Federation)
had already started to accommodate the needs of an expanding economy
that was operating increasingly on a supraregional level. The advent of
machinery and urbanization facilitated the production processes and the
rising bourgeoisie favoured open markets promoting the free
interplay of economic forces. Legal unification therefore was required,
first and foremost, in the trade-related fields of law. A first
significant step in this direction was the establishment of a German
Customs Union in 1833. In 1848 the law of negotiable instruments was
unified by means of the Allgemeine Deutsche Wechselordnung,38 and
between 1861 and 1866 nearly all the states of the Deutscher Bund
adopted the draft of a General German Commercial Code (Allgemeines
Deutsches Handelsgesetzbuch) that had been completed in 1861.39 A draft
law of obligations (Dresdener Entwurf) was published in 1865.
Although it was never adopted, it significantly influenced the German
After the creation of the Deutsches Reich a streamlined
procedural and organizational framework for the uniform and efficient
administration of justice was established: the four Reichsjustizgesetze40
concerned the unification of the court system (Gerichtsverfassungsgesetz),
the law of bankruptcy (Konkursordnung), civil procedure (Zivilprozeßordnung),
and criminal procedure (Strafprozeßordnung). They all came
into force in October 1879. While they have been amended on various
occasions, three of these acts remain upon the statute book today; the Konkursordnung
was replaced by a new insolvency code (Insolvenzordnung) in
1999. The first of October 1879 also saw the opening of a supreme
appeal court for the entire Reich in all civil and criminal matters:
the Reichsgericht.41 Its seat was Leipzig, a city with a
distinguished legal tradition which had the advantage of not being
identical with, but still sufficiently close to, the political capital
of the Reich (Berlin). Its first president was Eduard von
Simson, a Prussian lawyer of Jewish descent who had been baptized in
his early youth. He had presided over the German National Assembly of
1848 that had met in the Frankfurt Paulskirche and had also
been president of the Imperial Parliament.42
The scene was thus set for what was to be the crowning symbol of
German legal unity: a code of private law. Its gestation period was
close to thirty years. The starting shot was fired by the lex
Miquel Lasker of 1873, by means of which the power to legislate
concerning the entire field of private law was conferred on the
Imperial Parliament. The details of the way in which the BGB has been
prepared have often been recounted:43 appointment of a preliminary
commission and, subsequently, of the First Commission, preparation of
preliminary drafts by the reporters appointed for the five books of the
projected code, publication of the First Draft with the attendant
motivations (entitled Motive zu dem Entwurfe eines
Bürgerlichen Gesetzbuches für das Deutsche Reich),
vigorous and very controversial public debate, deliberations of an
internal commission of the Imperial Department of Justice, appointment
of the Second Commission, publication of the Second Draft, again with
the attendant motivations (this time entitled Protokolle der
Kommission für die Zweite Lesung des Entwurfs des
Bürgerlichen Gesetzbuches), revision of the Second Draft by
the Federal Council (Bundesrat), the debates in the Imperial
Parliament (both in committee and in plenary sessions), the taking of
the final vote (with the Social Democrats voting against the code
because it did not deal with labour relations), promulgation in the
Government Gazette of 1896, and entry into force a little less than
three and a half years later, on 1 January 1900. In 1897 the librarian
of the Reichsgericht, Georg Maas, published a little-known
bibliography of the official documents relating to the Civil Code;44 two
years later a very useful collection of many important (though not, as
was claimed in the title of the work, all) documents was edited by
In the meantime, the genesis of each individual rule contained in the
BGB has been traced and made available in an easily-accessible manner
by Horst Heinrich Jakobs and Werner Schubert.46 In addition, Werner
Schubert has organized a reprint of the preliminary drafts of the
reporters appointed for the First Commission and their motivations.47 They
contain a wealth of comparative material and are an outstanding source
for the state of contemporary doctrinal discussion.
The BGB was supposed to be, in Bernhard Windscheid's words, 'a
cathedral of national splendour',48 and Windscheid himself became one of
its principal architects. Neither the design nor the details of its
construction, however, could be taken to have been lifted from 'among
the treasures deeply hidden in the people's soul'.49 The general public in
Germany has never developed any enthusiasm for the BGB, in spite (or,
possibly because) of all of its technical qualities. And even among
lawyers, the code was not universally greeted with feelings of elation
or joy. The publication of the First Draft had initiated a persistent
stream of criticism. 'A tornado broke loose. It rained, it poured books
and pamphlets... The project was criticized from every point of view...
One might have thought that the whole scheme would perish': thus
Maitland, from the perspective of a foreign observer.50 This criticism was
taken into account only to a limited extent. Eventually, German lawyers
began to resign themselves to the idea that perhaps too much had been
expected of the Civil Code.
VI. The BGB as a 'Prison Cell'?
At the same time, there had also been widespread feelings of
apprehension in the years before 1900 as to how the codification would
influence the administration of justice.51 Many lawyers realized that, in view
of the special nature of the Roman legal sources, they had enjoyed a
great degree of freedom. The richness and complexity of those sources
had allowed wide scope for doctrinal development and innovation, and
the pandectist scholars had thereby become the high priests of legal
The new code, it was feared, would reduce the judge to a mere
'subsumption machine' (Subsumtionsautomat),53 and would constitute
a prison cell for legal scholarship.54 There was great concern about an
impending 'cult of literalism'.55 These anxieties prompted some
authors to attribute to the BGB merely the status of a 'restatement';56 they
stimulated renewed attempts to search for criteria of justice beyond
the positive law;57
and they contributed substantially to the rise of the 'free-law
movement' (Freirechtsschule).58 Looking at the way in which private
law developed in the course of the twentieth century it appears that
the BGB did in fact prove to be a kind of prison cell in one respect.
For, while the draftsmen of the code had still based their proposals on
remarkably comprehensive comparative legal research,59 private law
legislation in the new century in the words of Ernst Rabel, became
enamoured with the example of the Great Wall of China.60 A similar observation
could be made as far as legal doctrine and the study of law are
concerned. By the time the BGB entered into force, an avalanche of
legal literature had started to sweep across the German legal landscape.61
on the BGB had been appearing since as early as 1897. In 1899 a
bibliography was published that listed approximately 4,000 titles of
over 324 pages.64
This literature, however, was almost exclusively exegetical in
character, focused on the wording of the Statute.65 Many authors at first
did hardly more than paraphrase the statutory provisions. They waited
to see how these provisions would be applied in practice66 and then began to
integrate the rapidly emerging case law into the new editions of their
Thus, very soon, the letter of the law was filled with life. At
first glimpse, at least, it appeared to be a new and youthful life.
Since the codification, according to contemporary opinion, contained a
comprehensive and closed system of legal rules,67 it constituted an
autonomous interpretational space. Thus, on the one hand, 'the
recollection of pandectist scholarship, one of the supreme achievements
of the German legal mind',68 faded remarkably quickly from both
the doctrine and the practice of German law; Savigny, Dernburg,
Jhering, Windscheid, and many other of the leading authors of the
nineteenth century were hardly cited any longer, not to mention the
earlier literature of the ius commune or the Roman legal
sources themselves. The 'historical' interpretation was largely reduced
to a perusal of the materials and motivations produced by the draftsmen
of the code.69
Of considerable significance, in that respect, had been the decision of
the German law teachers in 1896, at a Conference in Eisenach, to assign
to the BGB the central position in the law curriculum; this was quite
contrary to the way in which the codifications prevailing in parts of
nineteenth-century Germany had been treated.70 On the other hand,
everything which lay outside the territorial scope of application of
the national codification also vanished from the intellectual horizon
of legal academics and practitioners. German law was to be understood
and developed from within itself: Italian and French legal literature,
let alone English case law, could contribute nothing to it. The
codification thus promoted not only a vertical, but also a horizontal,
isolation of legal scholarship. '[I] simply do not believe that
contemporary law has really grown from the old law, but I regard it as
something new, created by the need of the present day and the sovereign
will of the modern legislature', wrote Konrad Cosack, the author of a
and he therefore refused to develop the law historically. At the same
time, the organic point of departure for the incorporation of
comparative law was lost. The legal horizon was limited by the rules
and principles contained in the BGB. Within this framework, judges and
legal writers strove to determine 'the concept' of impossibility72 to
distinguish the different types of damage that can arise as a result of
the delivery of non-conforming objects,73 or to penetrate the labyrinth of the
'owner-possessor-relationship'.74 According to prevailing,
contemporary ideology the codification represented the turning point of
German legal history.75
VII. The Reaction of the Courts
And the courts? Even in the course of the nineteenth-century legal
practice had not conformed to the ideas usually associated with the
terms 'conceptual jurisprudence' and 'scholarly positivism'.
Self-confident courts like the Supreme Appeal Courts of Kassel, Jena,
or Munich, the Supreme Appeal Court of the four free cities in
Lübeck, the Prussian Supreme Court, or later the Imperial Supreme
Court in Commercial Matters and, from 1879, the Imperial Supreme Court,
were able without any difficulty to procure for themselves 'the freedom
of movement which is so indispensable for a judge' (and which was
indeed conceded to them by clear-sighted authors like Windscheid).76 An
example can perhaps illustrate this assertion. At the beginning of the
nineteenth century Gustav Hugo had stated very pointedly that Aquilian
liability could, essentially, be reduced to the principle: whoever
unlawfully injures another is bound to pay compensation. This
assertion, he added, gave offence to 'the exact scholars' and was,
therefore, not to be found in any of the textbooks, even although it
correctly reflected the practice of nearly all courts in Germany.77 But it
was quite in tune with the tradition of the ius commune78 and was
to lead, in the course of the following decades, to decisions where
compensation was granted for pure economic loss.79 Essentially,
therefore, the lex Aquilia was applied in a very similar way as the
famous general provision of delictual liability in French law (Article
1382 Code civil) was interpreted by the courts.80 There were many other
developments which an 'exact scholar' must have observed with alarm.
Thus, as far as liability among neighbours was concerned, pandectist
legal literature tended to insist on fault.81 At the same time,
however, the courts displayed a remarkable willingness to abandon the
axiomatic fixation on the culpa requirement as a Foundation for
extracontractual liability. When, from the middle of the nineteenth
century onwards, industrialization led to a significant increase in
neighbour disputes, they realized that an owner of property has to be
granted protection, at least in some situations, even beyond the
general principles of Aquilian liability. The actio negatoria
was among the remedies liberally extended in this context.82 The
possibility of sanctioning wrongs by means of private law had vanished
from legal practice long before it had vanished from the textbooks.83 And
that an owner has to make sure that his property does not constitute a
danger to the public was recognized long before the concept of Verkehrssicherungspflicht
had found its way into legal literature.84 Many more examples could presumably
be found by closely analysing nineteenth-century court practice. The
Imperial Supreme Court in Commercial Matters displayed a great deal of
creativity in the nine years of its existence, and in the reasons for
its decisions it relied surprisingly often on comparative observations.85 The Reichsgericht
interpreted the codes and statutes which it had to apply not in a
literalist manner but in the spirit of the historical school, i.e. with
reference to the general thinking patterns of pandectist legal
This comparatively flexible approach towards the applicable sources
of law did not significantly change after the enactment of the BGB.
For, contrary to a widely held opinion, the first decades of the
twentieth century were not marked by conceptual jurisprudence,
statutory positivism, and the fine art of the 'legal game of chess'.87 Thus,
for example, the Reichsgericht continued to apply the exceptio
doli in the tradition of the ius commune;88 soon after 1900, it
began, from a number of different starting points, to turn the decision
of the draftsmen of the BGB not to recognize the doctrines of culpa
and clausula rebus sic stantibus90 on its head; it granted claims
arising from positive malperformance (positive Forderungsverletzung)
of contracts of sale based on § 276 I 1 BGB in exactly the same
way as it had previously done on the basis of the actio empti
of the ius commune;91 it recognized a right to terminate
the contract even in these cases of contractual liability;92 the
judges of the Imperial period had already laid the foundations for the
recognition of a contract with protective effect vis-à-vis third
parties and the doctrine of transferred loss (Drittschadensliquidation);93 they
set in motion the process of a transformation of the law of delict,94 which
was later analysed in a famous article by Ernst von Caemmerer;95 they
established the essential contours of the law of agency as it is
and they determined the boundary between liability for latent defects
and the law of mistake97
which was to hold for the rest of the century. Here, too, many other
examples could be given. Where the Reichsgericht developed the
law, there are usually either overt or covert lines of continuity
linking the new law to the old: either because the judges simply
perpetuated their earlier case law, or because they extended a line of
development which had its origin in the nineteenth century. Except in
the ideology of most law teachers, the BGB was certainly not a
watershed in German legal development; indeed, rather it bore certain
characteristics of a restatement98 while, at the same time, settling a
number of deeply-rooted doctrinal disputes.99 Or, as Bernhard
Windscheid wrote in an article in which he attempted, for himself, to
resolve the tension between the programme of the Historical School and
the impending codification of German private law, or between legal
science and legislation: 'As historical jurists we know that the code
will be no more than a moment in the development, more tangible,
certainly, than the ripple in a stream but, none the less, merely a
ripple in the stream'.100
The great achievement of the Reichsgericht lay in the fact
that, from the outset, it cautiously developed the law and adapted it
to new and changing circumstances while generally avoiding any break in
continuity. Among the tools used by the judges were the undisguised
appeal to general legal intuition101 or common sense,102 the reading of
tacit conditions into the contract (a device which has been popular at
all times and in many countries),103 and the construction of fictitious
And in order to satisfy, at least formally, the demands of statutory
positivism, even the legislative history was occasionally subjected to
a somewhat skewed perspective determined, above all, by the desired
VIII. Unity of the System of Private Law?
'But nothing is more certain than that the old society and economic
system has irretrievably come to an end' (Thomas Mann in his diary, 15
April 1919). That collapse resulted from the First World War and the
upheavals caused by it. At the same time, our perception of the world
changed dramatically. 'The modern world began on 29 May 1919', writes
'when photographs of a solar eclipse, taken on the Island of Principe
off West Africa and at Sobral in Brazil, confirmed the truth of a new
theory of the universe'. Obviously, the nineteenth century only really
ended at around 1920. Thus, unlike the Code civil, the BGB did
not herald the beginning of the new epoch. In many respects, it still
reflected the values of a world that was destined to disappear.107
It was a world with a patriarchal family structure, with
associations and foundations still firmly under the tutelage of state
and with a comparatively formal concept of freedom of contract;109 a
world in which a regulation on bee swarms was regarded as more
important than one on standard terms of business. The typical citizen
for the BGB was not the factory worker but rather the moneyed
entrepreneur, the landed proprietor, or the public servant.110 In a
number of respects, therefore, the BGB was soon to be regarded as
outdated. About 160 statutory amendments and decisions of the Federal
Constitutional Court have affected both the text and substance of the
code, more than half of them, however, dating from the last quarter of
the twentieth century. Family law, in particular, has been subject to
fundamental changes; more than thirty important amendments have left
hardly any part of it unchanged.111 Comparatively few changes have
been made to text of the other four books. The provisions on lease and
employment contracts have been considerably modified and supplemented,
but the development of the law of domestic leases112 has largely, and
that of labour relations113 has completely, taken place
outside the framework of the BGB. Other major amendments concern the
regulation of contracts relating to package holidays in §§
651 a ff., the law of land tenure (§§ 585 ff. BGB) and
contracts concerning bank transfers, bank payments, and giro accounts
(§§ 676 a ff.).114
Outside the BGB, however, a secondary system of private law by way
of special statutes'115
has grown up, by means of which the social model underlying the BGB has
been adapted to modern conditions. Apart from competition law and
labour law, the law of consumer protection deserves particular mention
in this context. Among its core components are the statutes on standard
terms of business (1976), doorstep sales and similar transactions
(1986), and on consumer credits (1990), but also other statutes like
the ones dealing with liability for defective products (1989),
time-share agreements (1996) and distance sales (2000). It is often
that this tradition of excluding from the general private law
codification subjects which are considered to be of a special nature
dates back to the Historical School and that therefore neither the
statute concerning instalment sales (1894) nor the one imposing strict
liability for personal injuries sustained in the operation of a railway
(1871) were included in the code.117 It has, in fact, remained
controversial until today whether, or to what extent, such subjects
have attained the kind of structural and conceptual stability required
for incorporation into a general code of private law.118
IX. The Resilience of the BGB
With the Modernization of the Law of Obligations Act, most of the
special statutes in the field of consumer contract law have now found a
place in the BGB. In addition, there have been reforms affecting the
law of damages,119
contract of lease,120
The introduction of same sex partnerships by an act of 16 February 2001124 has
led to more than thirty provisions throughout the BGB being amended.
All these changes, however, have happened in the course of the past
four years. Up to that time, i.e. for the first one hundred years of
its existence, the text of the BGB (apart from the provisions on family
law) had been remarkably resistant to change. This resilience
throughout all the upheavals of the twentieth century has frequently
been commented upon. It is less remarkable for property law, the law of
succession, and even for delict or unjustified enrichment, than it is
for an inherently dynamic subject such as contract law. The 'evacuation
of important developments (labour law, social lease law, consumer law)
provides only part of the explanation. Another reason for the BGB's
resilience lies in the character of the code itself. In form and
substance it was moulded by nineteenth-century pandectist scholarship.
Its draftsmen had, very largely, aimed at setting out, containing, and
consolidating 'the legal achievements of centuries'.125 The BGB was
regarded as part of a tradition significantly shaped by legal
scholarship. The phenomenon of scholarly 'development' of the law was
quite familiar to the draftsmen of the code. Horst Heinrich Jakobs has,
therefore, pointedly referred to the BGB as a codification 'which does
not contain the source of law in itself but has its source in the legal
scholarship from which it was created'.126 The BGB was designed to provide a
framework for an 'organically progressive legal science'. The idea of
enacting a prohibition of commenting upon the BGB (as existed with
regard to the Prussian Code of 1794)127 was quite alien to the draftsmen
of the BGB: as alien as the equally odd idea that it might be possible
to lay down a specific rule for every imaginable situation. Time and
again, the travaux preparatoires contain express statements to
the effect that the solution to a specific problem has to be left to
Moreover, in spite of having been influenced so strongly by
pandectist legal doctrine, the BGB is not doctrinaire in spirit and
Its draftsmen did not feel called upon to provide authoritative
definitions for fundamental concepts such as contract, declaration of
will, damages, causation, or unlawfulness and thus, in a way, to remove
these matters from scholarly discussion. Nor did they determine
questions of legal construction (what type of legal act is the
performance of an obligation?). A number of basic evaluations and
doctrinal points of departure were also not specifically spelt out in
the code in view of the fact that they could be taken for granted.
Thus, for example, there is no explicit reference to freedom of
contract. § 119 BGB envisages three different types of mistake
which allow a contract to be rescinded; but the intellectual basis for
this rule, i.e. that an error in motive is irrelevant in principle, is
not mentioned in the code. The BGB sometimes provides hardly more than
the conceptual signposts for the development of legal doctrine. The
rules contained in it usually attain a considerable level of
abstraction, both as far as form and substance are concerned. Contrary
to the Prussian Code ('Common chicken, geese, ducks, doves and turkeys
are to be counted among the chattels appurtenant to a landed estate')129 the
BGB predominantly does not attempt to provide a careful and detailed
regulation of individual situations to be encountered in daily life,
but instead makes available a set of rules and concepts which are
applicable to a large variety of problems - among them many that could
not be envisaged by those who drafted the code. It is hardly surprising
that the BGB has come to be regarded as outdated wherever this
technique has not been followed and where the code, therefore,
confronts its readers with the world of day labourers and coach drivers,130 or
with the merger of migrating bee swarms.131 In addition, of course, there are
open-ended provisions like § 138 I BGB (invalidity of contracts contra
bonos mores) or § 242 BGB (obligations must be performed in
accordance with the precepts of good faith)132 by means of which
the BGB attempts to achieve a balance between doctrinal stability and
X. The Development of Private Law under the Code
The foundation was thus laid for courts of law and legal
scholarship, in characteristic cooperation, to bring the letters of the
law to life, to interpret and develop the provisions contained in the
code, and to adapt them to new circumstances.133 The details of
this process are analysed in a new, historical commentary on the German
A suitable methodological background was provided by the interest-based
approach which was established by Philipp Heck but can ultimately be
traced back to Rudolf von Jhering.135 After 1945, the focus on interests
was substituted by an emphasis on the balancing of evaluations.136
Courts and legal writers attempted to tackle the problems arising from
awkwardly formulated, or idiosyncratic, provisions, from a lack of
systematic coordination (the relationship between the rules on
unjustified enrichment and those on so-called owner-possessor
relationships), from individual rules which soon turned out to be
unsuitable (the six-month prescription period, running from the moment
of delivery for claims based on latent defects in contracts of sale),
or from the fact that the scope of application of a provision came to
be seen as too narrow (the in pari turpitudine rule, as
contained in § 817, 2 BGB) or too wide (mortuus redhibetur,
as adopted in § 350 BGB). 'Gaps in the law'137 had to be filled,
drafting mistakes had to be corrected, and indeterminate legal concepts
had to be specified. Legal solutions had to be found, on the basis of
the considerations underlying the regulations in the code, for complex
patterns of facts (the various categories of three-party situations in
the law of unjustified enrichment). New legal questions, not even
imaginable at the beginning of the twentieth century, had to be solved
(wrongful birth). New types of contracts which came to be established
in business life (such as leasing), had to be brought within the system
of contracts provided by the BGB. Changes in social mores had to be
accommodated, such as the commercialization of ever increasing aspects
of life, including holidays and leisure time. The law of damages and of
unjustified enrichment, as well as other areas, where the BGB contains
hardly more than a number of general concepts and provisions, had to be
filled with finely nuanced rules and doctrines.
Spacious doctrinal edifices have been created even where the BGB
contains hardly more than individual building blocks (Störung
der Geschäftsgrundlage). Some of these doctrines have been
developed in spite of the fact that there does not really exist a
'legal gap' in the BGB, others have been smuggled into the code along
side-paths which had not been designed for that purpose (the right to
an established and operative business). New systematic schemes have
been devised (enrichment by transfer, enrichment based on an
encroachment) and new theoretical frameworks came to be established
(liability based on reasonable expectations). The 'materialization' of
German contract law was evident not only in acts of special legislation
outside the BGB - such as the Standard Terms of Business Act, or the
rights of revocation contained in a number of consumer protection
statutes - but also in the way in which rules like § 138 I BGB
came to be applied, for instance, to instalment credit transactions, or
to contracts of suretyship entered into by an impecunious wife or child
of the main debtor, or in the scope of application given to a doctrine
such as culpa in contrahendo.138 The openness and flexibility of
the Generalklauseln turned out to be a curse under the National
Socialist regime, and a blessing under the Basic Law of 1949. The
doctrine of the indirectly horizontal effect139 led to German law
being adjusted to the system of values embodied in the fundamental
rights provisions of the Basic Law; but it also increasingly placed the
Federal Constitutional Court in the position of an irregular supreme
court of appeal in private law disputes.140 Occasionally even decisions by the
Federal Supreme Court which were clearly contra legem have
been sanctioned by the Federal Constitutional Court in view of certain
evaluations derived from the Basic Law.141
The American comparative lawyer John P. Dawson has famously
referred to a German 'case law revolution'.142 A large number of
has been made. Much of what has been discovered is new. But often we
also find old wine being poured into new vessels. This is true wherever
the rules of the BGB constitute pandectist doctrine in statutory form,
where we are dealing with rules of interpretation such as the
interpretatio contra eum qui clarius loqui debuisset, or with
general maxims underlying the BGB without specifically having been
restated in the code (dolo agit qui petit quod statim redditurus est).
Wherever a problem has not been decided by the draftsmen of the code
but has been left to legal doctrine, the pandectist textbooks also, not
rarely, point the way towards the most appropriate solution. We observe
the phenomenon of a renaissance of rules and concepts from an
ostensibly outdated past (utile per inutile non vitiatur),144
recourse to the sources of the ius commune continues to be of
considerable significance for the proper evaluation and interpretation
of the provisions contained in the BGB. Ulrich Huber's great monograph
on the law of breach of contract145 can serve as a particularly
impressive, as well as comparatively recent, confirmation for the truth
of this assertion.
XI. Criticism of the BGB
For more than one hundred years, the BGB has been both a
characteristic manifestation and a constituent feature of German legal
culture. It has been, and has remained, modern as a result of having
provided a framework for an organic development of the law. None the
less, there has also always been criticism. This tradition goes back to
the period immediately after the publication of the First Draft in
1888. Protagonists of a fundamental line of criticism were then, in
particular, the members of the women's movement, the socialists, and
the legal Germanists; they regarded the code as patriarchal,
insensitive to social issues, not readily comprehensible, and too
pervasively Romanist in spirit, form, and substance.146 Dieter Schwab has
recently demonstrated that such criticism continued after the BGB's
entry into force and that it was, above all, taken up with renewed
vigour in times of upheaval.147 Thus in 1919, as Otto von Gierke
had done around the turn of the new century Justus Wilhelm Hedemann
pointed out the BGB's lack of character: 'It is timid and dull, it
displays no vigorous spirit, no characteristic personality'.148 It
was oriented towards the conservative and prosperous citizen. This was
also disliked by the BGB's critics during the time of National
Socialism. The code was thought to be characterized by an exaggerated
individualism and to reflect a materialistic world order, it was
regarded as 'un-German', removed from the reality of life, and
scholastic. The longing for a law that was 'German' now became mixed up
with racist ideology.149
The completion of a 'People's Code', prepared under the auspices of an
Academy for German Law by the elite of professors of private law, as
far as they were still active in German universities,150 was prevented by
the collapse of the regime. The workers' and farmers' paradise of
post-war East Germany found the BGB no more appealing than the Nazi
state. In 1965 a family law code was enacted and, in 1976, those parts
of the BGB that had still been in force until then were replaced by a
socialist civil code. In West Germany, the so-called student revolts
from 1967 onwards revived the aversion to the BGB: it was of no use for
regulating the 'social processes of our time'.151 The ideological
bias of a large part of the fundamentalist opposition to the BGB should
not be allowed to obscure the fact that the code has never engendered
feelings of affection. Nor has it become a popular part of the German
cultural heritage, and it has no share in the creation of a national
identity comparable to that of the Code civil in France, or the
common law in England. Most German lawyers, in the words of Hein Kotz,
pay their code 'a kind of cool, almost grudging tribute'.152
Thus, it is hardly surprising that the code's 100th birthday passed
without great celebration by either the general public or the legal
community. In 1996 and 2000, a number of articles appeared attempting
to provide a detached assessment,153 an occasional colloquium was held,154 and
here and there a series of lectures was organized.155 No Festschrift was
dedicated to the BGB (quite in contrast, incidentally, to the Federal
Supreme Court on the occasion of its 50th birthday, celebrated also in
The general tone of the centenary contributions was not exuberant. The
technical quality of the code was praised, as ever, as were its
intellectual maturity and the fine sense of legislative self-restraint.
German lawyers appreciate the BGB as a stable basis for their work. In
other countries, it has always been regarded as a typical product of
German legal scholarship ('Never, I should think, has so much
first-rate brain power been put into an act of legislation': F.W.
not surprisingly therefore, it has had a greater impact on legal theory
and legal doctrine in other European countries than on foreign
Still, however, it was received in Greece (with the result that that
country is, today, normally regarded as part of the Germanic legal
family); it shaped the reform of the Austrian Civil Code in 1914-16;
and it influenced the codifications in Italy (1942), Portugal (1966),
and the Netherlands (1992). In discussions concerning law reform in the
formerly socialist countries and the harmonization of private law in
Europe, however, the BGB has often been regarded as outdated. This is,
as far as contract law is concerned, largely due to the fact that the
Convention on Contracts for the International Sale of Goods has
established itself as a more suitable model. Also, a number of the
relevant doctrines have been raised by the BGB to a level of
abstraction unfamiliar to most lawyers outside Germany: for they are
dealt with in the General Part of the BGB, not just the general part of
the law of obligations, or of contract law.
Also, of course, it has to be acknowledged that the BGB did in fact
contain a number of key provisions that were increasingly regarded as
deeply unsatisfactory. They include, as far as the law of obligations
is concerned, delictual liability for others in terms of § 831,
which is still based on the fault principle in spite of a reversal of
the onus of proof, the restrictive attitude with regard to granting
compensation for immaterial damage (§§ 847 and 253 BGB), the
excessively differentiated law of extinctive prescription, the outdated
system of liability for latent defects in relation to contracts of sale
and contracts for work, and the badly coordinated restitution regimes
contained in §§ 346 ff. and 812 ff. BGB respectively. In one
of these cases, the Federal Supreme Court (with the approval of the
Federal Constitutional Court)159 has gone so far as partially to
derogate the relevant rule (§ 253 BGB);160 in another (§
831 BGB), the courts have attempted to provide workable solutions by
extending the regime provided in § 31 BGB161 and by opening up
a wide grey area between delict and contract which they have subjected
to the contractual regime;162 in the other cases they have
explored a multitude of subtle ways to get around the problem but have,
at the same time, frequently created new difficulties of delimitation
or conflicts in evaluation. In the area of liability for latent defects
contractual practice has, of course, also helped to find appropriate
solutions. The Ministry of Justice intended to deal with two of the
problem areas mentioned above and therefore, in 1967, published a draft
statute for the amendment and supplementation of provisions dealing
with the law of damages. These proposed reforms have, however, never
XII. The Modernization of the Law of Obligations
The idea of a comprehensive reform of the law of obligations seems
to be attributable to the then Minister of Justice, Hans-Jochen Vogel.
He first presented it to the Federal Parliament in 1978 and
subsequently also to the 52nd Deutscher Juristentag (Meeting of
the Association of German Lawyers).164 The main concerns motivating the
reform were (i) the integration of a number of special statutes into
the BGB (such as, for example, the Standard Terms of Business Act, the
Act on Instalment Sales, and several strict liability statutes), (ii)
the incorporation of new types of contractual relationships into the
BGB (such as doctors' contracts, contracts concluded with old-age and
nursing homes, contracts about the supply of energy, and contracts
between private clients and their banks), (iii) the reform of a number
of specific types of obligations already dealt with in the BGB (sale,
contracts for work, the law of unjustified enrichment, delict), and
(iv) the need for reshaping the general law of obligations,
particularly for adapting it to new developments on the international
The Ministry then requested a number of academic opinions, which
were published in three large volumes in 1981 and 1983.166 Each of the
reporters had the task of investigating an area of the law of
obligations with a view to its need for reform, and of formulating
suggestions as to how such reform might be implemented. Almost all
areas within the law of obligations were included,167 with the important
exception of the law of lease.168 The reports were eagerly
discussed, both among academics and the various legal professions;169
thus, for instance, at the beginning of 1983, the Association of
Teachers of Private Law devoted a special Conference to the reform of
the law of obligations.170
A report on the discussion following the introductory keynote speech171
referred to a mood of 'sceptical open-mindedness'.172 One year later,
the Federal Minister of Justice established a Reform Commission173
headed by the responsible Director-General; it consisted of four
delegates from the justice departments of the federal states, five
judges, one practising lawyer, one notary, and four professors (Uwe
Diederichsen, Hein Kotz, Dieter Medicus, and Peter Schlechtriem).174 The
problem areas to be dealt with by the Commission were now limited to
the law of breach of contract, liability for defects in contracts of
sale and contracts for work, and liberative prescription. The
Commission was charged with the task of reshaping the law so as to be
clearer and 'more in keeping with the times',175 taking account of
the way in which the law had developed in practice. Twenty two meetings
were held, each of several days' duration; in 1992, the Commission
presented its final report.176 In addition to a general section,
that report contained specific proposals for legislation in each of the
areas mentioned, as well as the reasoning behind these proposals. As
far as the general law of breach of contract is concerned, the
Commission followed the lead of the UN Convention on the International
Sale of Goods (CISG) in many respects. This was entirely in accordance
with the views of the initial reporter on this subject, Professor
Ulrich Huber of the University of Bonn, who had answered the question:
'Is the introduction of a law of breach modelled on the Uniform Sales
Law to be recommended?' in the affirmative (though he had still taken
his lead from the Convention relating to a Uniform Law on the
International Sale of Goods of 17 July 1973).177
At the 60th Deutscher Juristentag in September 1994, the
Commission's draft proposals were the subject of the deliberations of
the private law section.178 In spite of occasional fundamental
criticism by distinguished academics,179 and outright rejection of the
draft by representatives of commerce and industry, the general
sentiment towards the draft was favourable. The report summing up the
proceedings of the Deutscher Juristentag in one of the two
major general law reviews recorded 'an encouraging result' and appealed
to the Government finally to put its words into action;180 another reporter
commented on a discussion that had gone much more smoothly than most
participants would have expected.181 According to Ernst A. Kramer,182 the
discussion displayed 'a fundamentally positive attitude', which also
manifested itself in the results of various votes taken at the meeting;
by and large they were very heartening' for the Commission.183
Apart from that, however, there was no broadly-based discussion of the
draft, either before or after the Juristentag in Münster.184 This
was due to an increasingly widespread impression that the draft had
disappeared into a drawer in the Ministry of Justice and that its
implementation was no longer likely to happen. The excitement
associated with an impending reform made way for a general sentiment of
indifference. This ended in September 2000 when suddenly something like
a bombshell was dropped on the German legal community: the publication
of a 630-page 'Discussion Draft' of a statute modernizing the law of
The direct trigger for the Discussion Draft was the enactment of the
Consumer Sales Directive and the need for its implementation by 1
January 2002. There can be no doubt that this Directive could have been
implemented by effecting a number of comparatively marginal adjustments
to German sales law.186
The Government had, however, decided to use this opportunity finally to
carry out the long-postponed reform of the law of obligations. As a
result, the entire project was now placed under an enormous pressure of
time. This was highly problematic in view of the fact that the
Discussion Draft (i) extended the reform agenda that had previously
come to be accepted (in particular, it was now proposed to incorporate
a number of special statutes concerning consumer protection into the
BGB), (ii) even in so far as it dealt with subjects covered by the
Draft of the Reform Commission, sometimes significantly deviated from
that Draft (particularly concerning the law of prescription), and (iii)
had not been brought up to date even where it followed the
recommendations of that Commission; thus, it failed to take account of
recent international initiatives in contract law (the publication of
the Principles of European Contract Law and of the UNIDROIT Principles
of International Commercial Contracts)187 and of new studies fundamentally
affecting our perception of German contract law.188 Academic criticism
was not, therefore, long in coming. It was articulated particularly
strongly at a Symposium of German professors in private law held at the
University of Regensburg in November 2000.189 It induced the
Government to establish two working groups charged with the task of
critically examining the Discussion Draft and the recommendations
contained in it. The working group concerning breach of contract
consisted mainly of professors;190 the one looking into the law of
prescription, sales law, and other matters was constituted by officials
from the Ministries of Justice of the various German Länder,
judges of the Federal Supreme Court, members of the earlier Reform
Commission, practitioners, and one professorial representative.191
These working groups only had a period of about two months for their
deliberations. None the less, they managed to effect a number of
substantial changes. In early May 2001 a Government Draft was published
which very largely accepted the recommendations of the working groups
but also took account of suggestions and requests which had emerged in
the course of hearings of interest groups affected by the reform.192 In
the course of summer and autumn 2001 the Government Draft was pushed
through Parliament by way of an accelerated procedure. In the process,
it was again repeatedly changed.193 The Modernization of the German
Law of Obligations Act was finally approved by the Federal Parliament
in October and by the Council of State Governments in early November
2001, and it was promulgated on 26 November 2001. A little more than
five weeks later it entered into force.
The reform legislation has divided the German private law
professoriate in an unprecedented manner. Strong language has been used
to scold the intellectual immaturity of the new law, and the finger of
scorn has been pointed at many of its aspects. Others have emphasized
the Government's readiness to listen to academic criticism, to involve
leading legal academics in the process of revising the Discussion
Draft, and to follow many of their suggestions. In the meantime, German
lawyers have had to come to terms with the reform, however critically
it may have to be evaluated.194 An enormous amount of legal
literature has appeared, whether in the form of textbooks,
commentaries, or even articles. It continues to grow with frightening
rapidity. Much more than has hitherto been the case German authors
will, however, have to cease to look at German law in isolation. They
will have to take account of, and at the same time contribute to, what
must be considered to be one of the most important legal developments
of our time: the increasing Europeanization of private law.195
XIII. The Europeanization of Private Law
From about the mid-1980s, the European Communities began to enact
Directives which profoundly affect core areas of the national systems
of private law.196
Milestones of this development were the Directives concerning liability
for defective products, contracts negotiated away from Business
premises, consumer credit, package travel, unfair terms in consumer
contracts, and consumer sales.197 As a result, the requirement of
interpreting provisions of national law in conformity with the
Directives on which they are based has attained considerable practical
In addition, the European Court of Justice, though not a Supreme Court
for private law disputes in the European Union, has started to fashion
concepts, rules, and principles which are relevant not only for the law
of the Union but also for the private laws of its Member States.199
Several international commissions and groups of experts are busy
developing or 'finding' (by means of a type of restatement) common
principles of a European law of contract, torts, or even trusts or
Ambitious research projects strive to establish the 'common core' of
European private law.201
The codification of European private law has been championed,
consistently, by the European Parliament, first in a resolution of May
The Commission of the European Union has, more cautiously, issued an
action plan for a more coherent European contract law203 which, inter
alia, aims at the development of a 'common frame of reference'.
This frame of reference is supposed to provide the basis for further
deliberations on an optional instrument in the field of European
The Principles of European Contract Law, drawn up by the so-called
constitute a blueprint for such instrument. Among academics across
Europe the desirability of a European Civil Code has become a hotly
Two international initiatives have already embarked on an attempt to
devise draft codes for the field of contract law and beyond.207 In
legal education, too, there are signs of a change of perspective.208 The
mobility of law students within the European Union is promoted by the
extraordinarily successful Erasmus (now Socrates) Programme. More and
more law faculties are trying to give themselves a 'European' profile
by offering integrated study programmes. Institutes and chairs of
European private law, European business law, or European legal history
have been established. Models of legal harmonization from Europe's past209 and
from other parts of the world210 are receiving increasing
attention. Moreover, the national isolation of law and legal
scholarship is being overcome by the uniform private law laid down in
international conventions. Of central importance, in this respect, is
the success story of the Convention on the International Sale of Goods,
which is beginning to play an increasingly important role in private
law adjudications by national Supreme Courts.211 The development
sketched, so far, in the roughest outline is also reflected in the
emergence of a legal literature focusing on European, rather than
merely national, law. This began in the fields of comparative law and
Since then, we have seen the publication of a textbook on the European
law of contract,213
delict, and unjustified enrichment,214 of comparative casebooks,215 of
series of monographs dealing with European legal history and European
private law, of at least three legal Journals which are devoted to
European private law,216
and of collections of the foundational texts in the field.217
At the same time it is clear that we will still be faced, in the
foreseeable future, with the co existence of a great number of national
systems of private law in Europe. Much would, however, be gained, if
these could be assimilated gradually, or organically. This requires the
protagonists of national legal development to be aware of what happens
in the other national legal systems and on the European level,
critically to examine quirks and idiosyncracies of their own legal
systems, and to adopt, whenever possible, a harmonizing approach.218
Those responsible for determining the direction of European private
law, on the other hand, have to take account of the national legal
experiences which have been gathered by sophisticated courts and legal
It is in this spirit that the studies collected in the present volume attempt to assess
the recent reform of German contract law.
Prof. Dr. Dr. h.c. mult. FBA FRSE; Director, Max Planck Institute for
Foreign Private Law and Private International Law, Hamburg. This
article first appeared in: Reinhard
Zimmermann, The New German Law of Obligations: Historical and
Comparative Perspectives (2005), 5 ff.
See Reinhard Zimmermann, 'Codification: History and Present
Significance of an Idea', (1995) 3 European Review of Private Law
95 ff. (with further references).
Klaus Luig, 'The Institutes of National Law in the 17th and 18th
Centuries',  Juridical Review 193 ff.
Rudolf von Jhering, Geist des römischen Rechts auf den
verschiedenen Stufen seiner Entwicklung, vol. I, 6th edn. (1907),
15. Jhering regarded this state of affairs as 'humiliating and
The standard account is Franz Wieacker, A History of Private Law in
Europe (1995) (transl. Tony Weir); cf. also Paul Koschaker, Europa
und das römische Recht, 4th edn. (1966) (on the significance
of Roman law for European legal culture); Helmut Coing, Europäisches
Privatrecht, vol. I (1985); vol. II (1989) (on the history of
private law doctrine); Peter Oestmann, Rechtsvielfalt vor Gericht (2002)
(on early modern German court practice). For an overview, see Reinhard
Zimmermann, 'Roman Law and the Harmonization of Private Law in Europe',
in Arthur Hartkamp et al. (eds.), Towards a European Civil
Code, 3rd edn. (2004), 21 ff.
The expression took root as a result of Samuel Stryk's work Specimen
usus moderni pandectarum, Halae(1690–1712); see Klaus Luig, 'Samuel
Stryk (1640–1710) und der "Usus modernus pandectarum"', in Die
Bedeutung der Wörter: Studien zur europäischen
Rechtsgeschichte, Festschrift für Sten Gagnér (1991),
The Afschaffingswet was dated 16 May 1829; for all details, see
Hendrik Kooiker, Lex Scipta Abrogata: De derde renaissance van het
romeinse recht, vol. I (1996).
Jan Lokin, 'Die Rezeption des Code Civil in den
nördlichen Niederlanden', (2004) 12 Zeitschrift für
Europäisches Privatrecht 932 ff.
Generally on the reception of the French Code civil, see Konrad
Zweigert and Hein Kötz, An Introduction to Comparative Law,
3rd edn. (1998) (transl. Tony Weir), 98 ff.
See the contributions in Reiner Schulze (ed.), Französisches
Zivilrecht in Europa während des 19. Jahrhunderts (1994), and
in Reiner Schulze (ed.), Rheinisches Recht und Europäische
Rechtsgeschichte (1996); see also Elmar Wadle, Französisches
Recht in Deutschland (2002).
Elmar Wadle, 'Rezeption durch Anpassung: Der Code Civil und das
Badische Landrecht: Erinnerung an eine Erfolgsgeschichte', (2004) 12 Zeitschrift
für Europäisches Privatrecht 947 ff.
For an overview of the laws applicable in Germany at the end of the
nineteenth century, see 'Anlage zur Denkschrift zum BGB', in Benno
Mugdan (ed.), Die gesammten Materialien zum Bürgerlichen
Gesetzbuch für das Deutsche Reich, vol. I (1899), 844 ff.; and
see Allgemeine Deutsche Rechts- und Gerichtskarte, 1896
(re-edited in 1996 by Diethelm Klippel).
For details, and references, see Reinhard Zimmermann, Roman Law,
Contemporary Law, European Law: The Civilian Tradition Today
(2001), 11 ff.
Koschaker (n. 4) 292.
Emil Friedberg, Die künftige Gestaltung des deutschen
Rechtsstudiums nach den Beschlüssen der Eisenacher Konferenz
(1896), 7 ff.
Zimmermann (n. 12) 3 ff.
Hans-Peter Haferkamp, Georg Friedrich Puchta und die
Ulrich Falk, Ein Gelehrter wie Windscheid: Erkundungen auf den
Feldern der sogenannten Begriffsjurisprudenz (1989).
Bernhard Windscheid, 'Das römische Recht in Deutschland' (1858),
in idem, Gesammelte Reden und Abhandlungen, ed. Paul
Oertmann (1904), 48 ff.
Friedrich Carl von Savigny, 'Ueber den Zweck dieser Zeitschrift',
(1815) 1 Zeitschrift für geschichtliche Rechtswissenschaft
Koschaker (n. 4) 269. On the 'discovery of legal history' in the
nineteenth century, see Wieacker (n. 4) 330 ff.
On Savigny's conception of legal science, see Joachim Rückert, Idealismus,
Jurisprudenz und Politik bei Friedrich Carl von Savigny (1984).
Friedrich Carl von Savigny, System des heutigen Römischen
Rechts, vol. I (1840), xv.
Friedrich Carl von Savigny, (1815) 1 Zeitschrift für
geschichtliche Rechtswissenschaft 6.
Friedrich Carl von Savigny, Vom Beruf unserer Zeit für
Gesetzgebung und Rechtswissenschaft, 1814, easily accessible in
Hans Hattenhauer (ed.), Thibaut and Savigny: Ihre programmatischen
Schriften, 2nd edn. (2002), 126.
Bernhard Windscheid, 'Recht und Rechtswissenschaft' (1854), in idem
(n. 18) 16.
For France, see Alfons Bürge, Das französische
Privatrecht im 19. Jahrhundert (1991); for Austria: Werner Ogris, Der
Entwicklungsgang der österreichischen Privatrechtswissenschaft im
19. Jahrhundert (1968); for Italy: the contributions in Reiner
Schulze (ed.), Deutsche Rechtswissenschaft und Staatslehre im
Spiegel der italienischen Rechtskultur während der zweiten
Hälfte des 19. Jahrhunderts (1990).
Wieacker (n. 4) 309 ff.
Wieacker (n. 4) 290 ff.
Savigny (n. 22) xiv ff.
Bernhard Windscheid, 'Die geschichtliche Schule in der
Rechtswissenschaft' (1878), in idem (n. 18) 66.
A.F.J. Thibaut, Über die Notwendigkeit eines allgemeinen
bürgerlichen Rechts für Deutschland (1814), easily
accessible today in Hattenhauer (n. 24) 37 ff.
Savigny (n. 24) passim, for example, 79 ff.
Theodor Mommsen, 'Die Aufgabe der historischen Rechtswissenschaft', in idem,
Gesammelte Schriften, vol. III (1907), 587.
Geist des römischen Rechts auf den verschiedenen Stufen seiner
Entwicklung, 1st edn., vol. I (1852), 2; cf. also Walter Wilhelm,
'Das Recht im römischen Recht', in Franz Wieacker and Christian
Wollschläger (eds.), Jherings Erbe (1970), 228 ff.; Horst
Heinrich Jakobs, Wissenschaft und Gesetzgebung im bürgerlichen
Recht nach der Rechtsquellenlehre des 19. Jahrhunderts (1983), 76
See, for example, his address in memory of Savigny: 'Festrede zum
Gedenken an Savigny' (1879), in idem (n. 18) 81 ff. On
Windscheid's attitude towards Savigny, see Oertmann (in his preface to
the volume just mentioned, XXVII ff.); Jakobs (n. 34) 101 ff.; Falk (n.
17) 174 ff.
Windscheid (n. 30) 70.
 Juristische Wochenschrift 1.
See Ulrich Huber, 'Das Reichsgesetz über die Einführung einer
allgemeinen Wechselordnung für Deutschland vom 26. November 1848',
 Juristenzeitung 785.
Christoph Bergfeld, 'Preußen und das Allgemeine Deutsche
Handelsgesetzbuch', (1987) 14 Ius Commune 101 ff.; and see
Karsten Schmidt, Das HGB und die Gegenwartsaufgaben des
Handelsrechts (1983). For the modernization of commercial law in
the nineteenth century in general, see Karl Otto Scherner (ed.), Modernisierung
des Handelsrechts im 19. Jahrhundert (1993); Arnold J. Kanning, Unifying
Commercial Laws of Nation-States (2003), 46 ff.
On which see Peter Landau, 'Die Reichsjustizgesetze von 1879 und die
deutsche Rechtseinheit', in Vom Reichsjustizamt zum
Bundesministerium der Justiz: Zum 100jährigen Gründungstag
des Reichsjustizamtes (1977), 161 ff.
On which see, on the occasion of its 100th anniversary, Arno Buschmann,
'100 Jahre Gründungstag des Reichsgerichts',  Neue
Juristische Wochenschrift 1966 ff.; Elmar Wadle, 'Das Reichsgericht
im Widerschein denkwürdiger Tage',  Juristische Schulung
841 ff. On the Reichsgericht's predecessor, the Supreme
Commercial Court, first of the Norddeutscher Bund and later of
the Reich (it existed from 1870–79), see Herbert Kronke,
'Rechtsvergleichung und Rechtsvereinheitlichung in der Rechsprechung
des Reichsoberhandelsgerichts', (1997) 5 Zeitschrift für
Europäisches Privatrecht 735 ff.
On Eduard von Simson, see James E. Dow, A Prussian Liberal: The
Life of Eduard von Simson (1981); Bernd-Rüdiger Kern and
Klaus-Peter Schroeder (eds.), Eduard von Simson (1810–99)
(2001). On the rise of Jewish lawyers and lawyers of Jewish descent in
nineteenth-century Germany, see Peter Landau, 'Juristen jüdischer
Herkunft im Kaiserreich und in der Weimarer Republik', in Helmut
Heinrichs, Harald Franzki, Klaus Schmalz and Michael Stolleis (eds.), Deutsche
Juristen jüdischer Herkunft (1993), 133 ff.; Reinhard
Zimmermann, ' "Was Heimat hieß, nun heißt es Hölle":
The emigration of lawyers from Hitler's Germany: political background,
legal framework and cultural context', in Jack Beatson and Reinhard
Zimmermann (eds.), Jurists Uprooted: German-speaking Emigré
Lawyers in Twentieth Century Britain (2004), 9 ff.
See, in particular, Werner Schubert, in Horst Heinrich Jakobs and
Werner Schubert (eds.), Die Beratung des Bürgerlichen
Gesetzbuchs in systematischer Zusammenstellung der
unveröffentlichten Quellen, Materialien zur Entstehungsgeschichte
des BGB (1978), 27 ff.; Barabara Dölemeyer, 'Das
Bürgerliche Gesetzbuch für das Deutsche Reich', in Helmut
Coing (ed.), Handbuch der Quellen und Literatur der neueren
europäischen Privatrechtsgeschichte, vol. III/2 (1982), 1572
ff.; Michael John, Politics and the Law in Late Nineteenth Century
Germany: The Origins of the Civil Code (1989); Fritz Sturm, 'Der
Kampf um die Rechtseinheit in Deutschland - Die Entstehung des BGB und
der erste Staudinger', in Michael Martinek and Patrick Sellier (eds.), 100
Jahre BGB - 100 Jahre Staudinger (1999), 24 ff. Cf. also the table
by Stefan Stolte, printed in Mathias Schmoeckel, Joachim Rückert
and Reinhard Zimmermann (eds.), Historisch-kritischer Kommentar zum
BGB, vol. I (2003), xxvii ff.
Bibliographie der amtlichen Materialien zum Bürgerlichen
Gesetzbuche für das Deutsche Reich und zu seinem
Mugdan (n. 11).
Horst Heinrich Jakobs and Werner Schubert (eds.), Die Beratung des
Bürgerlichen Gesetzbuchs in systematischer Zusammenstellung der
unveröffentlichten Quellen, 16 vols. (1978–2002).
Werner Schubert (ed.), Die Vorlagen der Redaktoren für die
erste Kommission zur Ausarbeitung des Entwurfs eines Bürgerlichen
Gesetzbuches, 15 vols. (1980–86).
Windscheid (n. 18) 48.
See, however, Ernst von Wildenbruch in his impassioned poem 'Das
deutsche Recht',  Deutsche Justiz 1.
Frederic William Maitland, 'The Making of the German Civil Code', in
H.A.L. Fisher (ed.), The Collected Papers of Frederic William
Maitland, vol. III (1911), 480.
In this regard, see Thomas Honsell, Historische Argumente im
Zivilrecht (1982), 22 ff., with references.
See James Q. Whitman, The Legacy of Roman Law in the German
Romantic Era (1990).
On the notion of a judge as a 'subsumption machine', see Regina Ogorek,
Richterkönig oder Subsumtionsautomat? Zur Justiztheorie im 19.
Jahrhundert (1986), 1 ff.
Hans Wüstendörfer, 'Die deutsche Rechtswissenschaft am
Wendepunkt', (1913) 110 Archiv für die civilistische Praxis
See, for example, Ernst Zitelmann, Die Gefahren des
Bürgerlichen Gesetzbuches für die Rechtswissenschaft
See, for example, Rudolph Sohm, 'Das Studium des römischen
Rechts',  Deutsche Juristenzeitung 39 and the references
in Honsell (n. 51) 24.
See Wieacker (n. 4) 463 ff.; Honsell (n. 51) 25.
On which see, for example, Wieacker (n. 4) 457 ff.
On the tradition of legislation comparée in the
nineteenth century, see, for example, Helmut Coing, 'Rechtsvergleichung
als Grundlage von Gesetzgebung im 19. Jahrhundert', (1978) 7 Ius
Commune 168 ff.; idem, Europäisches Privatrecht,
vol. II (1989), 56 ff.
This quotation is from an article published in 1913/14; the relevant
passage is cited in Ernst Rabel, 'Aufgabe und Notwendigkeit der
Rechtsvergleichung', in idem, Gesammelte Aufsätze,
vol. III (1967), 13 ff.
See Paul Laband,  Deutsche Juristenzeitung, col. 2 ff.
(who states that the literature in the area of private law broke forth
'with the suddenness and violence of a cloudburst').
See Sibylle Hofer, 'Haarspalten, Wortklauben, Silbenstechen? 100 Jahre
Lehrbücher zum BGB: Eine Lebensbilanz',  Juristische
Schulung 112 ff.
On which, see Heinz Mohnhaupt, 'Die Kommentare zum BGB als Reflex der
Rechtsprechung (1897–1914)', in Ulrich Falk and Heinz Mohnhaupt (eds.),
Das Bürgerliche Gesetzbuch und seine Richter: Fallstudien zur
Reaktion der Rechtspraxis auf die Kodifikation des deutschen
Privatrechts (1896–1914) (2000), 495 ff.
See Mohnhaupt (n. 63) 495.
For early criticism, see Ludwig Kuhlenbeck, Von den Pandekten zum
Bürgerlichen Gesetzbuch: Eine dogmatische Einführung in das
Studium des Bürgerlichen Rechts, Part I (1898), vii; and cf.
Mohnhaupt (n. 63) 495 ff.
See the characteristic comment in (1900) 29 Juristische Wochenschrift
See, for example, Heinz Hübner, Kodifikation und
Entscheidungsfreiheit des Richters in der Geschichte des Privatrechts
Koschaker (n. 4) 190.
See Kuhlenbeck (n. 65) vii. Generally on the 'historical argument' in
contemporary legal thinking and practice, see Honsell (n. 51) 47 ff.
Friedberg (n. 14).
Konrad Cosack, in Hans Planitz (ed.), Die Rechtswissenschaft der
Gegenwart in Selbstdarstellungen, vol. I (1924), 16.
On which see, most recently, Ulrich Huber, Leistungsstörungen,
vol. I (1999), 97 ff.
Infra p. 92.
Dirk A. Verse, Verwendungen im
Eigentümer-Besitzer-Verhältnis (1999), has recently
demonstrated, with regard to compensation for improvements, the
specific value of an historical and comparative approach.
This view was expressed, for example, by one of the most influential
early commentators on the BGB, A. Achilles (judge of the Reichsgericht):
cf. Mohnhaupt (n. 63) 502.
Bernhard Windscheid and Theodor Kipp, Lehrbuch des Pandektenrechts,
vol. I, 9th edn., § 28, note 4; and see the revisionist works by
Falk and Ogorek (nn. 17 and 53).
Gustav Hugo, Lehrbuch des heutigen Römischen Rechts, 7th
edn. (1826), 282.
Reinhard Zimmermann, The Law of Obligations: Roman Foundations of
the Civilian Tradition (1996), 1022 ff., 1031 ff.; Jan
Schröder, 'Die zivilrechtliche Haftung für schuldhafte
Schadenszufügungen im deutschen usus modernus', in Letizia Vacca
(ed.), La responsabilità civile da atto illecito nelle
prospettiva storico-comparatistica (1995), 147 ff.
See, for instance, the references in Windscheid and Kipp (n. 76) §
451, note 1 (concerning loss resulting from unlawful arrest).
This enabled Zachariae von Lingental to discuss the French law of
delict in a way which hardly differed from German law: Handbuch des
Französischen Civilrechts, vol. II, 6th edn. (1875), §
See, for example, Heinrich Dernburg, Pandekten, vol. I, 5th
edn. (1896), § 199, 4.
Regina Ogorek, 'Actio negatoria und industrielle Beeinträchtigung
des Grundeigentums', in Helmut Coing and Walter Wilhelm (eds.), Wissenschaft
und Kodifikation des Privatrechts im 19. Jahrhundert, vol. IV
(1979), 40 ff.; Andreas Thier, 'Zwischen actio negatoria und
Aufopferungsanspruch: Nachbarliche Nutzungskonflikte in der
Rechtsprechung des 19. und 20. Jahrhunderts', in Falk and Mohnhaupt (n.
63) 407 ff.
Nils Jansen, Die Struktur des Haftungsrechts: Geschichte, Theorie
und Dogmatik außervertraglicher Ansprüche auf Schadensersatz
(2003), 361 ff.
Detlef Kleindiek, Deliktshaftung und juristische Person (1997),
Kronke, (1997) 5 Zeitschrift für Europäisches Privatrecht
J. Michael Rainer, 'Zur Rechtsprechung des Reichsgerichts bis zum
Inkrafttreten des BGB: Ein Modellfall für den Europäischen
Gerichtshof ', (1997) 5 Zeitschrift für Europäisches
Privatrecht 751 ff.
Josef Partsch, Vom Beruf des römischen Rechts in der heutigen
Universität (1920), 39.
Hans-Peter Haferkamp, 'Die exceptio doli generalis in der
Rechtsprechung des Reichsgerichts vor 1914', in Falk and Mohnhaupt (n.
63) 1 ff.
Tomasz Giaro, 'Culpa in contrahendo: eine Geschichte der
Wiederentdeckungen', in Falk and Mohnhaupt (n. 63) 113 ff.
Klaus Luig, 'Die Kontinuität allgemeiner Rechtsgrundsätze:
Das Beispiel der clausula rebus sic stantibus', in Reinhard Zimmermann,
Rolf Knütel and Jens Peter Meincke (eds.), Rechtsgeschichte
und Privatrechtsdogmatik (2000), 171 ff.
Hans Peter Glöckner, 'Die positive Vertragsverletzung', in Falk
and Mohnhaupt (n. 63) 155 ff.; see also Klaus Luig, 'Die
"Privilegierung" des Verkäufers', in Mélanges en
l'honneur de Carlo Augusto Cannata (1999), 317 ff.; Huber (n. 72)
And thereby continued a development which has its origins in legal
scholarship and legislation of the nineteenth century; see Zimmermann
(n. 12) 94 ff., with references; Glöckner (n. 91) 167 ff.
Jörg Neuner, 'Die Entwicklung der Haftung für
Drittschäden', in Falk and Mohnhaupt (n. 63) 193ff.; cf. also
Sybille Hofer, 'Drittschutz und Zeitgeist: Ein Beitrag zur
privatrechtlichen Zeitgeschichte', (2000) 117 Zeitschrift der
Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung
Reinhard Zimmermann and Dirk A. Verse, 'Die Reaktion des Reichsgerichts
auf die Kodifikation des deutschen Deliktsrechts (1900–14)', in Falk
and Mohnhaupt (n. 63) 319 ff.
Ernst von Caemmerer, 'Wandlungen des Deliktsrechts', in Hundert
Jahre deutsches Rechtsleben: Festschrift zum hundertjährigen
Bestehen des Deutschen Juristentages 1860–1960, vol. II (1960), 49
Mathias Schmoeckel, 'Von der Vertragsfreiheit zu typisierten
Verkehrspflichten: Zur Entwicklung des Vertretungsrechts', in Falk and
Mohnhaupt (n. 63) 77 ff.
Filippo Ranieri, 'Kaufrechtliche Gewährleistung und
Irrtumsproblematik: Kontinuität und Diskontinuität in der
Judikatur des Reichsgerichts nach 1900', in Falk and Mohnhaupt (n. 63)
See Horst Heinrich Jakobs, Wissenschaft und Gesetzgebung im
bürgerlichen Recht nach der Rechtsquellenlehre des 19. Jahrhunderts
See Zimmermann (n. 12) 47 ff.
Windscheid (n. 30) 75 ff.
Cf., for example, RGZ 78, 239 at 240 ff. (the 'linoleum' case, 7
Cf., for example, RGZ 91, 21 at 24 (contaminated residence, 5 October
See, for example, the references in Luig (n. 91) 181 ff. Generally, see
Reinhard Zimmermann, '"Heard melodies are sweet, but those unheard are
sweeter ...": Condicio tacita, implied condition und die Fortbildung
des europäischen Vertragsrechts', (1993) 193 Archiv für
die civilistische Praxis 165 ff.
See, for example, the references in Giaro (n. 89) 130 ff.
In this regard, see Thomas Finkenauer, 'Das entstehungsgeschichtliche
Argument als Etikettenschwindel: Zwei Beispiele aus der Rechtsprechung
des Reichsgerichts zum Bereicherungsrecht', in Falk and Mohnhaupt (n.
63) 305 ff.
Paul Johnson, History of the Modern World (1983), 1.
The relationship between private law and German society in the
nineteenth and early twentieth centuries is discussed in four studies
by Franz Wieacker which have been collected in the volume
Industriegesellschaft und Privatrechtsordnung (1974): Das
Sozialmodell der klassischen Privatrechtsgesetzbücher und die
Entwicklung der modernen Gesellschaft (1953); Das
Bürgerliche Recht im Wandel der Gesellschaftsordnungen (1960);
Pandektenwissenschaft und Industrielle Revolution (1966); Der Kampf
des 19. Jahrhunderts um die Nationalgesetzbücher (1970). And
see now Joachim Rückert, 'Das BGB und seine Prinzipien: Aufgabe,
Lösung, Erfolg', in Mathias Schmoeckel, Joachim Rückert and
Reinhard Zimmermann (eds.), Historisch-kritischer Kommentar zum BGB,
vol. I (2003), nn. 92 ff.
See Andreas Richter, Rechtsfähige Stiftung und Charitable
Corporation: Überlegungen zur Reform des deutschen Stiftungsrechts
auf der Grundlage einer historisch-rechtsvergleichenden Untersuchung
der Entstehung des modernen deutschen und amerikanischen
Stiftungsmodells (2001), 40 ff.
But see now Sibylle Hofer, Freiheit ohne Grenzen? (2001).
Zweigert and Kötz (n. 8) 144.
For an overview see Dieter Schwab, Wertewandel und Familienrecht (1993);
Rainer Frank, '100 Jahre BGB - Familienrecht zwischen Rechtspolitik,
Verfassung und Dogmatik', (2000) 200 Archiv für die
civilistische Praxis 401 ff.
Udo Wolter, Mietrechtlicher Bestandsschutz (1984); Heinrich
Honsell, Privatautonomie und Wohnungsmiete, (1986) 186 Archiv
für die civilistische Praxis 115 ff. In September 2001,
however, the law of domestic leases was re-incorporated into the BGB.
Joachim Rückert, '"Frei" und "sozial":
Arbeitsvertrags-Konzeptionen um 1900 zwischen Liberalismen und
Sozialismen', (1992) 23 Zeitschrift für Arbeitsrecht 223
ff.; Klaus Adomeit, 'Der Dienstvertrag des BGB und seine Entwicklung
zum Arbeitsrecht',  Neue Juristische Wochenschrift 1710
Further examples are provided by § 90a (and, in this connection, a
number of other new provisions on the legal status of animals) (on
which, see Helmut Heinrichs, in Palandt, Bürgerliches
Gesetzbuch, 64th edn. (2005), § 90a, n. 1: a 'sentimental
pronouncement without any effective legal content') and § 55a (see
Palandt/Heinrichs (as above) § 55a, n. 1: 'contrary to the
system of the law').
Rolf Stürner, 'Der hundertste Geburtstag des BGB - eine nationale
Kodifikation im Greisenalter?',  Juristenzeitung 742.
But see Karsten Schmidt, Die Zukunft der Kodifikationsidee:
Rechtsprechung, Wissenschaft und Gesetzgebung vor den Gesetzeswerken
des geltenden Rechts (1985).
See infra pp. 165 ff., 169.
For all details, see infra pp. 159 ff., 205 ff.
For details, see Gerhard Wagner, Das neue Schadensersatzrecht
See Birgit Grundmann, 'Die Mietrechtsreform - Wesentliche Inhalte und
Änderungen gegenüber der bisherigen Rechtslage',  Neue
Juristische Wochenschrift 2497 ff.; Friedrich Klein-Blenkers, 'Das
Gesetz zur Neugliederung, Vereinfachung und Reform des Mietrechts
(Mietrechtsreformgesetz)', in Barbara Dauner-Lieb, Thomas Heidel,
Manfred Lepa and Gerhard Ring (eds.), Das neue Schuldrecht
(2002), 506 ff.
For details, see Walter Boente and Thomas Riem, 'Das BGB im Zeitalter
digitaler Kommunikation - Neue Formvorschriften',  Jura
793 ff.; Ulrich Noack, 'Elektronische Form und Textform', in
Dauner-Lieb, Heidel, Lepa and Ring (n. 120) 441 ff.
See Ernst Führich, 'Zweite Novelle des Reisevertragsrechts zur
Verbesserung der Insolvenzsicherung und der Gastschulaufenthalte',
 Neue Juristische Wochenschrift 3083 ff.; Mark Niehuus,
'Der Reisevertrag', in Dauner-Lieb, Heidel, Lepa and Ring (n. 120) 322
Ulrich Burgard, 'Das neue Stiftungsprivatrecht',  Neue
Zeitschrift für Gesellschaftsrecht 697 ff.
See Nina Dethloff, 'Die Eingetragene Lebenspartnerschaft - Ein neues
familienrechtliches Institut',  Neue Juristische Wochenschrift
Windscheid (n. 30) 75.
Jakobs (n. 34) 160. He goes on to state that the BGB 'should not, and
will not, control legal scholarship, but should be, and will be,
controlled by the latter, if such legal scholarship is itself
historical, in the full sense of the word'.
Hans-Jürgen Becker, 'Kommentier- und Auslegungsverbot', in Handwörterbuch
zur deutschen Rechtsgeschichte, vol. II (1978), cols. 963 ff.;
Matthias Miersch, Der sogenannte réferé legislatif:
Eine Untersuchung zum Verhältnis Gesetzgeber, Gesetz und
Richteramt seit dem 18. Jahrhundert (2000).
Okko Behrends, 'Das Bündnis zwischen Gesetzgebung und Dogmatik und
die Frage der dogmatischen Rangstufen', in Okko Behrends and Wolfram
Henckel (eds.), Gesetzgebung und Dogmatik (1989), 9 ff.; Jan
Schröder, 'Das Verhältnis von Rechtsdogmatik und Gesetzgebung
in der neuzeitlichen Rechtsgeschichte', in Behrends and Henckel (as
above) 37 ff.
§ 58 I 2 PrALR.
§ 196, nos. 3 and 9 BGB (old version).
§ 963 BGB.
These Generalklauseln are a characteristic element of German
private law; they constitute the most important as well as the most
convenient ports of entry for the values of the community. For a famous
warning against the dangers inherent in these provisions, see Justus
Wilhelm Hedemann, Die Flucht in die Generalklauseln: Eine Gefahr
für Recht und Staat (1933).
For a general account of the legal development in twentieth-century
Germany, see Karl Kroeschell, Rechtsgeschichte Deutschlands im 20.
Jahrhundert (1992). For a history of private law during the time
of the Weimar Republic, see Knut Wolfgang Nörr, Zwischen den
Mühlsteinen: Eine Privatrechtsgeschichte der Weimarer Republik
(1988). There is an extensive literature on the nazification of legal
life, and private law, during the 1930s: see Zimmermann (n. 42) 54 ff.,
58 ff. with references. Bernd Rüthers, Die unbegrenzte
Auslegung, 6th edn. (2005), remains of fundamental importance. For
the Federal Republic of Germany, see Joachim Rückert, 'Abbau und
Aufbau der Rechtswissenschaft nach 1945',  Neue Juristische
Wochenschrift 1251 ff.; Dieter Medicus, 'Entscheidungen des BGH als
Marksteine für die Entwicklung des allgemeinen Zivilrechts',
 Neue Juristische Wochenschrift 2921 ff.
So far, the first volume (covering the General Part of the BGB, i.e.
§§ 1–240) has appeared: Mathias Schmoeckel, Joachim
Rückert and Reinhard Zimmermann (eds.), Historisch-kritischer
Kommentar zum BGB, vol. I (2003); the second volume (covering the
general part of the law of obligations, i.e. §§ 241–432) is
in preparation for 2006.
On Philipp Heck, see now Heinrich Schoppmeyer, Juristische Methode
als Lebensaufgabe: Leben, Werk und Wirkungsgeschichte Phillip Hecks
Jens Petersen, Von der Interessenjurisprudenz zur
Wertungsjurisprudenz (2001). For a comprehensive analysis of the
methods of statutory interpretation in Germany, and their historical
development, see Stefan Vogenauer, Die Auslegung von Gesetzen in
England und auf dem Kontinent: Eine vergleichende Untersuchung der
Rechtsprechung und ihrer historischen Grundlagen, vol. I (2001), 28
ff., 430 ff.
On which see, generally, Claus-Wilhelm Canaris, Die Feststellung
von Lücken im Gesetz: Eine methodologische Studie über
Voraussetzungen und Grenzen der Rechtsfortbildung praeter legem,
2nd edn. (1983).
Claus-Wilhelm Canaris, 'Wandlungen des Schuldvertragsrechts - Tendenzen
zu seiner "Materialisierung" ', (2000) 200 Archiv für die
civilistische Praxis 273 ff.
It was developed by Günter Dürig, 'Grundrechte und
Zivilrechtsprechung', in Festschrift für Hans Nawiasky
(1956), 158 ff. and has been adopted by the Federal Constitutional
Court in its Lüth decision: BVerfGE 7, 198; on which see David P.
Currie, The Constitution of the Federal Republic of Germany
(1994), 181 ff.
This has been severely criticized: Uwe Diederichsen, 'Das
Bundesverfassungsgericht als oberstes Zivilgericht - ein Lehrstück
der juristischen Methodenlehre', (1998) 198 Archiv für die
civilistische Praxis 171 ff.
BVerfGE 34, 269 (14 February 1973; the Soraya case). For details, see
Zweigert and Kötz (n. 8) 688 ff.; Basil S. Markesinis and Hannes
Unberath, The German Law of Torts: A Comparative Treatise, 4th
edn. (2002), 415 ff.
John P. Dawson, The Oracles of the Law (1968), 432 ff.
Hans Dölle, Juristische Entdeckungen (1958), reprinted in
Thomas Hoeren (ed.), Zivilrechtliche Entdecker (2001), 5 ff.
Theo Mayer-Maly, 'Die Wiederkehr von Rechtsfiguren',  Juristenzeitung
1 ff.; Rolf Knütel, 'Römisches Recht und deutsches
Bürgerliches Recht', in Walther Ludwig (ed.), Die Antike in
der europäischen Gegenwart (1993), 43 ff.; Reinhard
Zimmermann, 'Civil Code and Civil Law', (1994/95) 1 Columbia
Journal of European Law 89 ff.
Ulrich Huber, Leistungsstörungen, 2 vols. (1999).
For details, see Dieter Schwab, (2000) 22 Zeitschrift für
Neuere Rechtsgeschichte 325 ff., with references.
Schwab (n. 146) 334 ff.
In an academic speech in 1919, cited by Schwab (n. 146) 337.
Schwab (n. 146) 340.
On the project of a 'People's Code', see, for example, Michael
Stolleis, 'Volksgesetzbuch', in Handwörterbuch zur Deutschen
Rechtsgeschichte, vol. V, cols. 990 ff.; Gerd Brüggemeier,
'Oberstes Gesetz ist das Wohl des deutschen Volkes: Das Projekt des
"Volksgesetzbuches" ',  Juristenzeitung 24 ff.; Hans
Hattenhauer, 'Die Akademie für Deutsches Recht (1933–44)',  Juristische
Schulung 680 ff.
Rudolf Wiethölter in his radio lectures, broadcast by the radio
station of Hesse; for details, see Schwab (n. 146) 344 ff.
Hein Kötz, in Verhandlungen des 60. Deutschen Juristentages,
vol. II/1 (1994), K 9.
See, for example, Rolf Stürner,  Juristenzeitung 741
ff.; Mathias Schmoeckel, '100 Jahre BGB: Erbe und Aufgabe',  Neue
Juristische Wochenschrift 1697 ff.; Reiner Schulze, 'Ein
Jahrhundert BGB - deutsche Rechtseinheit und europäisches
Privatrecht',  Deutsche Richterzeitung 369 ff.; Norbert
Horn, 'Ein Jahrhundert Bürgerliches Gesetzbuch',  Neue
Juristische Wochenschrift 40 ff.
For example, the symposium 'Das Bürgerliche Gesetzbuch und seine
Richter', the contributions to which have been published in the volume
edited by Falk and Mohnhaupt (n. 63). The centenaries of the BGB and
the Staudinger commentary were celebrated at a symposium in Munich in
June 1998; on which see the volume edited by Martinek and Sellier (n.
43). The papers presented at the Salzburg conference of the Association
of Teachers of Private Law in September 1999 also dealt with the
application and further development of the BGB over the last one
hundred years; see (2000) 200 Archiv für die civilistische
Praxis 273 ff. The Association of Young Academics in Private Law
had already held a conference on the BGB in 1996; its proceedings are
documented in the Jahrbuch Junger Zivilrechtswissenschaftler
Hans Schlosser and Volker Behr (eds.), Bürgerliches Gesetzbuch
1896 - 1996 (1997).
No less than three Festschriften appeared on this occasion: 50
Jahre Bundesgerichtshof: Festgabe aus der Wissenschaft (four
volumes) (2000); 50 Jahre Bundesgerichtshof: Festschrift aus
Anlaß des fünfzigjährigen Bestehens von
Bundesgerichtshof, Bundesanwaltschaft und Rechtsanwaltschaft beim
Bundesgerichtshof (2000); Fortitudo Temperantia, Die
Rechtsanwälte am Reichsgericht und beim Bundesgerichtshof:
Festgabe zu 50 Jahren Bundesgerichtshof (2000).
Maitland (n. 50) 484. On the evaluation of the BGB from the point of
view of French and English law, see Werner Schubert, 'Das
Bürgerliche Gesetzbuch im Urteil französischer Juristen bis
zum Ersten Weltkrieg', (1997) 114 Zeitschrift der Savigny-Stiftung
für Rechtsgeschichte, Germanistische Abteilung 128 ff.; Marcus
Dittmann, Das Bürgerliche Gesetzbuch aus Sicht des Common Law
For an overview, see Wieacker (n. 4) 383 ff.; Zweigert and Kötz
(n. 8) 154 ff. And see the contributions in (2000) 200 Archiv
für die civilistische Praxis 365 ff., 493 ff.
Supra n. 141.
Cf., for example, BGHZ 26, 349 ff. (gentleman horse-rider); BGHZ 35,
363 ff. (ginseng roots).
See Kleindiek (n. 84) 314 ff., 340 ff.
See, from a comparative perspective, Zweigert and Kötz (n. 8) 630
ff.; Markesinis and Unberath (n. 141) 701 ff.
For more details on these attempts at reform, see Hermann Lange, Schadensersatz,
2nd edn. (1990), 19 ff.; Gottfried Schiemann, in J. von Staudingers
Kommentar zum Bürgerlichen Gesetzbuch, 13th edn. (1998),
preliminary notes to §§ 249 ff., nn. 26 ff.
See the references in Alfred Wolf, 'Weiterentwicklung und
Überarbeitung des Schuldrechts',  Zeitschrift für
Wolf,  Zeitschrift für Rechtspolitik 253 ff.
Gutachten und Vorschläge zur Überarbeitung des Schuldrechts,
vol. I (1981); vol. II (1981); vol. III (1983).
In particular: recent developments of the law of contract in Europe
(Max Planck Institute, Hamburg), extinctive prescription (Frank Peters
and Reinhard Zimmermann), law of damages (Gerhard Hohloch),
pre-contractual liability (Dieter Medicus), long-term contracts
(Norbert Horn), breach of contract (Ulrich Huber), contracts of sale
(Ulrich Huber), contracts concerning residence and care in homes for
senior citizens (Gerhard Igl), contracts for medical treatment (Erwin
Deutsch, Michael Geiger), contracts for work (Hans-Leo Weyers),
contracts to take care of a matter for somebody against valuable
consideration (Hans-Joachim Musielak), giro account relationships
(Franz Häuser), law of negotiable instruments (Ingo Koller),
unjustified enrichment (Detlef König), contractual and
extra-contractual liability (Peter Schlechtriem), law of delict
(Christian von Bar), strict liability (Hein Kötz), consumer
protection (Harm Peter Westermann), contracts for the provision of
energy (Volker Emmerich), contracts of employment (Manfred Lieb),
building contracts (Kurt Keilholz), negotiorum gestio ( Johann
Georg Helm), partnership (Karsten Schmidt), suretyship and guarantee
(Walther Hadding, Frank Häuser, and Reinhard Welter). In addition,
in 1986 and on behalf of the Hamburg Max Planck Institute, Jürgen
Basedow submitted a comparative report on the development of the law of
sale: Jürgen Basedow, Die Reform des deutschen Kaufrechts
This was also pointed out by Dieter Medicus, 'Zum Stand der
Überarbeitung des Schuldrechts', (1988) 188 Archiv für
die civilistische Praxis 169 ('striking').
See, for example, the contributions in (1982) 37 Neue Juristische
Wochenschrift 2017 ff. (by Jürgen Schmude, Helmut Heinrichs,
Wolfgang B. Schünemann, Manfred Lieb, Ulrich Hübner and
Johannes Denck), and the bibliography included in Wolfgang Ernst and
Reinhard Zimmermann (eds.), Zivilrechtswissenschaft und
Schuldrechtsreform (2001), as appendix II A.
The papers (by Manfred Lieb, Eduard Picker, Max Vollkommer, Hans G.
Leser and Klaus J. Hopt) were published in (1983) 183 Archiv
für die civilistische Praxis 327 ff.
Manfred Lieb, 'Grundfragen einer Schuldrechtsreform', (1983) 183
Archiv für die civilistische Praxis 327 ff.
Gerhard Hönn, 'Diskussionsbericht', (1983) 183 Archiv für
die civilistische Praxis 366.
See Hans A. Engelhard, 'Zu den Aufgaben einer Kommission für die
Überarbeitung des Schuldrechts',  Neue Juristische
Wochenschrift 1201 ff.
For details, see Bundesminister der Justiz (ed.), Abschlußbericht
der Kommission zur Überarbeitung des Schuldrechts (1992) 13
Hans A. Engelhard,  Neue Juristische Wochenschrift 1201.
Abschlußbericht (n. 174). On the working methods of the
Commission, cf. also Medicus, (1988) 188 Archiv für die
civilistische Praxis 168 ff. And see the contributions of Walter
Rolland, Dieter Medicus, Lothar Haas and Dieter Rabe to  Neue
Juristische Wochenschrift 2377 ff.
The UN Convention on the International Sale of Goods of 11 April 1980
only entered into force in Germany on 1 January 1991.
The reporters were Hein Kötz, Peter Joussen and Gerd
See, in particular, the contribution by Werner Flume in
Verhandlungen des 60. Deutschen Juristentages, vol. II/2 (1994), K
112 ff. In a similar vein, in the run-up to the conference, cf. also
Wolfgang Ernst, 'Zum Kommissionsentwurf für eine
Schuldrechtsreform',  Neue Juristische Wochenschrift 2177
ff.; idem, 'Kernfragen der Schuldrechtsreform',  Juristenzeitung
'60. Deutscher Juristentag: Der Tagungsverlauf ',  Neue
Juristische Wochenschrift 3070.
'Tagungsbericht: Der 60. Deutsche Juristentag in Münster',  Juristenzeitung
'Die Reform des Schuldrechts - Die privatrechtliche Abteilung des 60.
Deutschen Juristentags, 20 - 23. September 1994 in Münster',
(1995) 3 Zeitschrift für Europäisches Privatrecht
These votes are documented in Verhandlungen II/1 (n. 152) K 103
This has repeatedly been criticized. See, for example, Harm Peter
Westermann,  Monatsschrift für Deutsches Recht 1.
But see the discussion on the occasion of the 24th congress of German
notaries, based on papers presented by Günther Brambring and
Hermann Amann, as well as the literature listed in Ernst and Zimmermann
(n. 169) appendix II B.
The text of the draft rules is easily accessible in Ernst and
Zimmermann (n. 169) appendix I; the draft rules plus motivation can be
found in Claus-Wilhelm Canaris (ed.), Schuldrechtsmodernisierung
2002 (2002), 3 ff.
See Wolfgang Ernst and Beate Gsell, 'Kaufrechtsrichtlinie und BGB:
Gesetzentwurf für eine "kleine" Lösung bei der Umsetzung der
EU-Kaufrechtsrichtlinie',  Zeitschrift für
Wirtschaftsrecht 1410 ff.; cf. also Wolfgang Ernst and Beate Gsell,
'Nochmals für eine "kleine" Lösung',  Zeitschrift
für Wirtschaftsrecht 1812 ff.; Andreas Schwartze, 'Die
zukünftige Sachmängelgewährleistung in Europa - Die
Verbrauchsgüterkauf-Richtlinie vor ihrer Umsetzung', (2000) 8
Zeitschrift für Europäisches Privatrecht 544 ff.
Ole Lando and Hugh Beale (eds.), Principles of European Contract Law,
Parts I and II (2000); Ole Lando, Eric Clive, André Prüm
and Reinhard Zimmermann (eds.), Principles of European Contract Law,
Part III (2003); UNIDROIT (ed.), Principles of International
Commercial Contracts (1994). For the literature that had appeared,
by 2000, on these instruments, see appendix II D in Ernst and
Zimmermann (n. 169).
In particular: Ulrich Huber, Leistungsstörungen, 2 vols.
The contributions to this symposium have been published in Ernst and
Zimmermann (n. 169). Another symposium was held in January 2001: Reiner
Schulze and Hans Schulte-Nölke (eds.), Die Schuldrechtsreform
vor dem Hintergrund des Gemeinschaftsrechts (2001). On 30/31 March
2001 the Association of German Teachers of Private Law held a special
meeting in Berlin to discuss what had by then become the revised
version of the Discussion Draft. The lectures delivered at that meeting
have been published in a special issue of Juristenzeitung:
 Juristenzeitung 473 ff. The revised version of the Discussion
Draft (known as Konsolidierte Fassung des Diskussionsentwurfs eines
Schuldrechtsmodernisierungsgesetzes) can be found in Canaris (n.
185) 349 ff.
Kommission Leistungsstörungen. The names of the members are
listed in Claus-Wilhelm Canaris, 'Die Reform des Rechts der
Leistungsstörungen',  Juristenzeitung 499.
For details, see Canaris (n. 185) x.
'Entwurf eines Gesetzes zur Modernisierung des Schuldrechts', easily
accessible in Canaris (n. 185) 429 ff., 569 ff.
Thus, for example, the Council of State Governments submitted proposals
for 150 amendments, of which the Government accepted about 100; see
'Stellungnahme des Bundesrates (31 August 2001)' and
'Gegenäußerung der Bundesregierung zur Stellungnahme des
Bundesrats zum Entwurf eines Gesetzes zur Modernisierung des
Schuldrechts', both now easily accessible in Canaris (n. 185) 935 ff.,
For an attempt to take stock, see Barbara Dauner-Lieb, 'Das
Schuldrechtsmodernisierungsgesetz in Wissenschaft und Praxis - Versuch
einer Bestandsaufnahme', in Barbara Dauner-Lieb, Horst Konzen and
Karsten Schmidt (eds.), Das neue Schuldrecht in der Praxis
(2003), 3 ff. For a (largely unfavourable) assessment from the point of
view of a foreign observer, see Ole Lando, 'Das neue Schuldrecht des
Bürgerlichen Gesetzbuchs und die Grundregeln des europäischen
Vertragsrechts', (2003) 67 Rabels Zeitschrift für
ausländisches und internationales Privatrecht 231 ff.
For an overview, see Nils Jansen, Binnenmarkt, Privatrecht und
europäische Identität (2004); Reinhard Zimmermann,
'Comparative Law and the Europeanization of Private Law', in Mathias
Reimann and Reinhard Zimmermann (eds.), Oxford Handbook of
Comparative Law (in preparation).
Peter-Christian Müller-Graff, 'EC Directives as a Means of
Unification of Private Law', in Arthur Hartkamp et al. (eds.), Towards
a European Civil Code, 3rd edn. (2004), 77 ff.
These, and the other Directives in the field of private law, can
conveniently be found in Oliver Radley-Gardner, Hugh Beale, Reinhard
Zimmermann and Reiner Schulze (eds.), Fundamental Texts on European
Private Law (2003), sub I.
Claus-Wilhelm Canaris, 'Die richtlinienkonforme Auslegung und
Rechtsfortbildung im System der juristischen Methodenlehre', in Im
Dienst der Gerechtigkeit: Festschrift für Franz Bydlinski
(2002), 47 ff.
Walter van Gerven, 'The ECJ Case-law as a Means of Private Law
Unification', in Hartkamp et al. (n. 196) 101 ff.; for the law
of delict, see Wolfgang Wurmnest, Grundzüge eines
europäischen Haftungsrechts: Eine rechtsvergleichende Untersuchung
des Gemeinschaftsrechts (2003), 13 ff.
Wolfgang Wurmnest, 'Common Core, Grundregeln,
Kodifikationsentwürfe, Acquis-Grundsätze - Ansätze
internationaler Wissenschaftlergruppen zur
Privatrechtsvereinheitlichung in Europa', (2003) 11 Zeitschrift
für Europäisches Privatrecht 714 ff.
Mauro Bussani and Ugo Mattei (eds.), The Common Core of European
Private Law (2002).
On which, see Winfried Tilmann, 'Entschließung des
Europäischen Parlaments über die Angleichung des Privatrechts
der Mitgliedstaaten vom 26.05.1989', (1993) 1 Zeitschrift für
Europäisches Privatrecht 613 ff.
COM (2003) 68, OJ 2003, C 63/1.
See, most recently, the 'Communication from the Commission to the
European Parliament and the Council on "European Contract Law and the
revision of the acquis: the way forward" ', COM (2004) 651 final. The
parameters for the academic discussion are analysed by Stephen
Weatherill, 'Why Object to the Harmonization of Private Law by the
EC?', (2004) 12 European Review of Private Law 633 ff.
Lando and Beale (n. 187) and Lando, Clive, Prüm and Zimmermann (n.
187), both quoted above. For comment, see Reinhard Zimmermann, 'The
Principles of European Contract Law: Contemporary Manifestation of the
Old, and Possible Foundation for a New, European Scholarship of Private
Law', in Essays in Honour of Hein Kötz (2005),
Ewoud Hondius, 'Towards a European Civil Code', in Hartkamp et al.
(n. 196) 3 ff.
Giuseppe Gandolfi (coordinateur), Code Européen des
Contrats: Avant-projet (2000); Christian von Bar, 'The Study Group
on a European Civil Code', in Festschrift für Dieter Henrich
(2000) 1 ff.
Michael Faure, Jan Smits and Hildegard Schneider (eds.), Towards a
European Ius Commune in Legal Education and Research (2002).
Reinhard Zimmermann, 'Savigny's Legacy: Legal History, Comparative Law,
and the Emergence of a European Legal Science', (1996) 112 Law
Quarterly Review 576 ff.
Vernon Valentine Palmer (ed.), Mixed Jurisdictions Worldwide: The
Third Legal Family (2001); Jan Smits, The Making of European
Private Law: Towards a Ius Commune Europaeum as a Mixed Legal System
(2002); Reinhard Zimmermann, Daniel Visser and Kenneth Reid (eds.), Mixed
Legal Systems in Comparative Perspective (2004).
Reinhard Zimmermann and Kurt Siehr (eds.), 'The Convention on the
International Sale of Goods and its Application in Comparative
Perspective', (2004) 68 Rabels Zeitschrift für
ausländisches und internationales Privatrecht 113 ff.
Helmut Coing, Europäisches Privatrecht, vol. I (1985);
vol. II (1989); Reinhard Zimmermann, The Law of Obligations: Roman
Foundations of the Civilian Tradition (1990).
Hein Kötz, Europäisches Vertragsrecht, vol. I (1996)
(English translation under the title European Contract Law by
Tony Weir, 1997); volume II, to be written by Axel Flessner, has not
yet been published.
Christian von Bar, Gemeineuropäisches Deliktsrecht, vol. I
(1996); vol. II (1999) (English translation under the title The
Common European Law of Torts, vol. I (1998); vol. II (2000)); Peter
Schlechtriem, Restitution und Bereicherungsausgleich in Europa:
Eine rechtsvergleichende Darstellung, vol. I (2000); vol. II
(2001); cf. also Reinhard Zimmermann (ed.), Grundstrukturen des
Europäischen Deliktsrechts (2003); idem (ed.), Grundstrukturen
eines Europäischen Bereicherungsrechts (2005).
Hugh Beale, Arthur Hartkamp, Hein Kötz and Denis Tallon (general
eds.), Cases, Materials and Text on Contract Law (2002); Walter
van Gerven, Jeremy Lever and Pierre Larouche, Cases, Materials and
Text on National, Supranational and International Tort Law (2000);
Jack Beatson and Eltjo Schrage (eds.), Cases, Materials and Texts
on Unjustified Enrichment (2003); cf. also Filippo Ranieri, Europäisches
Obligationenrecht, 2nd edn. (2003).
Zeitschrift für Europäisches Privatrecht, European Review
of Private Law, Europa e diritto privato.
Radley-Gardner, Beale, Zimmermann and Schulze (n. 197).
See, as far as the judiciary is concerned, Walter Odersky,
'Harmonisierende Auslegung und europäische Rechtskultur', (1994) 2
Zeitschrift für Europäisches Privatrecht 1 ff.; and
see Zimmermann (n. 205) sub V.
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